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THE UNIVERSITY OF NORTH CAROUNA 



The James Spnmt Ifistorical Publications 



PUBLISHED UNDER THE DIRECTION OF 



The North Carolina Historical Society 



J. G. DK RooLHAC Hamilton ) Edltora 

HBNBY McGlLBERT WaGSTAFF f 



Vol. 13 No. 1 



The North Carolina Colonial Bar 

Erottt fi. Alderman 

The GranviDe District 

E. Mtrton CaalUr 



Thi SnSMAN Pbintbst 

Durham, N. C. 

1918 




THE NORTH CAROUNA COLONIAL BAR 



BY 

Ernest H. Alderman 



THE NORTH CAROUNA COLONIAL BAR* 

Like all other studies dealing with North Carolina Colonial 
History, and dealing with the earlier part of the Colonial Period 
especially, the study of the North Carolina Colonial Bar is at- 
tended with many diflSculties. The oflScial records are so few in 
numlber and so indefinite in detail that it is little short of im- 
possible to form any clear idea as to the condition and quality of 
the legal profession of the period. More than likely it is for 
this reason that even in the better histories of our State, written 
at a late date, we find no connected account of the Colonial Bar. 
Or perhaps Wheeler is right when he says: "The Colonial 
history of the judiciary under the proprietary and regal gov- 
ernors of North Carolina did not allow the legal profession that 
weight in the community that its importance merited. With 
despotic governors and among a restless population, rules of 
action declaring rights and prohibiting wrongs were but little 
regarded."^ 

However the case may be and whether or not lawyers were 
regarded as of great importance by the early North Carolinians, 
it is a fact that we have few records to show how they were re- 
garded as a class. 

Again, the few records which we do have are almost exclusive- 
ly adverse to the lawyers. They form a chain of protests against 
the bar and of legislation passed with the intent to control and 
suppress its members. 

The first record which I have been able to find in connection 
with the subject, for instance, is directed against the members 
of the Bar. Locke's Fundamental Constitutions for North Car- 
olina (1669), article 70, says : "It shall be a base and vile thing 
to plead for money or reward; nor shall anyone (except he be 
a near kinsman no farther off than cousin german to the party 
concerned) be permitted to plead another man's cause till, before 

♦ This paper was awarded the first prize, given by the North Carolina 
Society of Colonial Dames of America for research in North Carolina Colonial 
liistory by undergraduate students of the University. 
^History Sketches of North Carolina, page 99. 



6 James Spbunt Histobical Publications 

the judge in open court, he hath taken an oath that he does not 
plead for money or reward, nor hath, nor will receive, nor 
directly or indirectly, bargained with the party whose cause he is 
going to plead,^ for money, or any other reward for pleading his 
cause." 

Thus, at the beginning of the establishment of the colony the 
profession which now is regarded as one of the most noble was 
condemned. However, as Ashe suggests, the purpose of this pro- 
vision was possibly to build up a clientage for the great lords and 
add to their importance. 

From that time on, however, we get accounts of difficulty after 
difficulty between the lawyers and the courts, or between the 
lawyers and the people. This was probably due to the method by 
which lawyers were licensed. From the earliest time on to very 
near the time of the Revolution they were granted license by the 
governor with no restriction whatever, except the custom which 
grew up of the Chief Justice, after a perfunctory examination, 
recommending candidates to the governor. Naturally enough, 
many men were thus permitted to practice who had no scruples 
whatever — ^men who manipulated the courts so that they could 
squeeze as many fees as possible out of their clients. 

Therefore, from the records we are forced to believe that law- 
yers as a class bore an unsavory reputation in the early days. 
On the other hand we know that many of them were great and 
patriotic men. In the disputes and quarrels leading to the Revo- 
lution, in the Revolution itself, and finally in the organizing of 
the State, many of the leaders were sincere and patriotic mem- 
bers of the bar. 

Of the early years of the North Carolina Colonial Bar, as 
said, we know little. The first notice of lawyers being in the 
colony that I find in the Colonial Records is as follows : 

"At a Court Holden at The House of Diana F. Fosters — The 
First Munday In February Anno. Do. 1693-94. 

"A Judgment confessed by Major Lillington and Mrs. Susan- 
na Hartley as Attorneys to Capt. George Clark for £35, s.l9 
with cost alias Execution; Ordered that Major Alexander Lil- 
lington and Mrs. Susanna Hartley in their capacities aforesaid 



The North Caeolin^a Colonial Bab 7 

do pay unto Colls. Wm. Wilkerson sum of £35, s.l9 cost 
aforesaid/'^ 

We could not tell from this whether Lillington was a practicing 
attorney-at-law or merely an attorney-in-fact, but later records 
show that he was a licensed practitioner. 

From then on through the Records we find name after name 
listed as an attorney. From this we get the following list named 
in the order in which they first appear, together with a few 
gathered from other sources, namely : 

Maj. Alexander Lillington, Capt. Henderson Walker, William 
Glover, Francis Tomes, John Hawkins, Edward Mayo, Richard 
Plater, Stephen Manwaring, Andrew Ros, Hanabell Haskins, 
John Porter, Francis Hendrick, John Durant, Barbary Middle- 
ton, Wm. Duckenfield, John North Cote, Dan Akehurst, Thomas 
Pollock, George Durant, Callom Flynn, Jacob Peterson, Ga- 
briel Newby, Caleb Calloway, James Long, Richard Plato, 
Christopher Butler, James Thigpen, Robert Fendell, Archbill 
Homes, John Falconer, Thomas Norcum, John Stepney, John 
Anderson, Thomas Snoden, Richard Burthenshall, Capt. Cole, 
John Heckelfield, William Wilkeson, Thomas Boyd, Sam 
Swann, Peter Godfrey, Hug'h Campbell, James Locke, Nath 
Chevin, Thomas Norkam, John Winbury, Dennis Macclendon, 
John Foster, Isaac Wilson, Wm. White, Arnold White, John 
Clarke, Ed. Berry, Richard Henderson, John Pettiver, Edward 
Moseley, Ed. Bonwicke, James Locke, Lewis Cannon Marcht, 
John Lorricke, John Palin, Thomas Boyd, Dan Guthrie, Dan 
Richardson, Joell Martin, Augustine Scarborough, Thomas 
Bray, Thomas Henneman, Will Little, Thomas Swann, Thomas 
Jones, John Baptists Ashe, John Culpepper, McGuire, David 
Osheat (Osheal), James Everard, Henry Pendleton, William 
Hooper, John Penn, Abner Nash, Marmaduke Jones, William 
Charlton, Stephen Dewey, Mr. Hodgson, Richard Neale, Ed- 
mund Fanning, John Williams, Mr. Lucas.^ 

Many of these men were little known — in the case of some of 
them the only mention being the one noting their acting 

*CoI. Record, Vol. I — 392. 

■This list Is not claimed to be complete. Probably names of many men who 
began to practise Just before the Revolution should be included, but as they were 
not connected with colonial history proper, I have omitted their names. 



8 James Speunt Historical Publications 

as attorneys in certain cases. Many of them, on the other hand, 
we meet with again and again in colonial history. In the case 
of several we cannot be sure that they were regular practitioners, 
but it is clear that for the most part they were. The list is long 
enough to show that despite opposition to their profession there 
were many of them during the hundred years of the colonial 
period — especially is this so w'hen we remember that the records 
are very limited. 

Our object now, however, is to take up in a general chrono- 
logical order the history of the profession in that period, and 
incidentally to study the careers of particular members of the 
profession. 

As early as 1695 we find that certain members of the Bar 
were in trouble with the courts, as the following — borrowed from 
Hawk's History of North Carolina — shows :* 

FROM COUBT RECORDS 

1695 — "Ordered that the marshall take into custody Stephen 
Manwaring, and him safely keep until he shall find surety for 
his appearance the second day of the next general court, to 
answer for his contemptions and insolent behavior before the 
court, and to be of good abearance in the meantime." 

"Whereas it appears unto this court that Stephen Manwaring 
hath been a juryman in the precinct court of Perquimans, in a 
cause wherein he was before retained as an attorney: ordered 
that the said Stephen Manwaring be not suffered to plead as an 
attorney in any court in this government. 

"Upon the humble petition of Stephen Manwaring, praying 
that he may have until the fifth day of the next general court to 
make proof that he informed the court of his being of council 
in the above-mentioned cause before he was sworn of the jury; 
the above order is suspended until the fifth day of the next 
general court that the said Stephen Manwaring may make proof 
of his above-mentioned assertion." 

1697 — "Whereas, at a general court, holden the 26th day of 
February, 1695, Stephen Manwaring was, by order of the said 
court disabled from pleading as an attorney in any court of 

*Vol. II, p. 111. 



The Nobth Cakolina Colonial Bab 9 

record in this govemment ; whicli order was suspended upon the 
petition of said Manwaring, and day given him to the then next 
general court to clear himself from the information then brought 
against him; which he, the said Man waring not having done, 
the said order passed against him is hereby revived and con- 
firmed. And it is hereby ordered that the said Stephen Man- 
waring, shall not be from henceforth permitted to plead as an 
attorney in any court of record in this government." 

1695 — "Whereas, Col. William Wilkeson and Capt. Hender- 
son Walker have offered sundry affronts to the members of this 
court; ordered that neither the said Col. Wilkeson, nor the said 
Henderson Walker from henceforth be allowed to plead as at- 
torneys in this court in any person's cause, except in the cause 
of such persons as have not their residence in this government. 

"Col. William Wilkeson comes abruptly into the room where 
the Hon. Thos. Harvey, Esq., deputy-governor and council were, 
and there using some violent discourse was desired to give some 
of the council liberty to speak, and replied, 'I have given you 
all too much liberty, and especially to you,' — directing his speech 
to the Hon. Daniel Akehurst." 

It would be interesting to know further details of these con- 
flicts and of the men connected with them. We know indeed that 
all three of the men mentioned above as having been forbidden 
to practice were prominent men in the colony. Walker was 
afterward governor for a short period, and his rule was 
extremely beneficial to the colony. Wheeler tells us that 
"under the mild rule of Gov. Walker, the inhabitants of North 
Carolina increased in the enjoyment of the highest personal 
liberty." As he had been a judge of the Supreme Court, he was 
especially interested in the judiciary. As a result an important 
change took place in the judiciary. Whereas "the general court 
had been held by the chief magistrate, the deputies of the lords 
proprietors, and two assistants, a commission was now issued 
appointing five persons Justices of the Supreme Court.^ 

At this period, as all our historians agree, the most prominent 
men of the colony were attorneys, among them being Alexander 

•Wheeler. 



10 James Speunt Histoeicai. Publications 

Lillington (died 1697), Major Sam Swann, Thomas Pollock, 
Henderson Walker, Wm. Glover, and John Porter. 

A letter of William Gale's — written about 1700 — tends, how- 
ever, to prove an above statement to the effect that lawyers as a 
class suffered under an unenviable reputation. He says in part : 
"Most who profess themselves doctors and attorneys are scandals 
to their profession." This attitude was probably due to the 
fact that professional men were now beginning to be exorbitant 
in their fees — a thing which is shown by the fact that beginning 
now and going on up to the Revolution there was a continual 
stream of legislation, or attempted legislation, to regulate fees of 
attorneys. 

In a court record® for 1703 we find an entry which is interest- 
ing in that it gives us an idea of how the early settlers gave the 
power of attorney to their lawyers, namely : 

"Know all men by these presents that I, Henry Becker, of 
Virginia, Nominated, Constituted, Authorized and Appoynted 
and in my st^ad and place do put my very good friend Sam 
Swann Esqr. in Carolina to be my true and lawful attorney 
irrevocably to sue for Levie Recover Receive Demand and take 
of Wm. Early of ye said Carolina ye sum of 24:17 :4^ Or any 
other person or persons Indebted to ye sd Baker within ye 
abovesd Country Giving and Granting into my said Attor. my 
full and whole power and Lawful Authority in ye execution of 
ye premisses to arrest attack Implead Imprisson and out of 
Prison againe to Deliver ye sd Wm. Early his heirs etc. until 
they or some of them shall have fully satisfied ye Debt abovesd 
And upon Reciete thereof or any part thereof acquittances or 
any other Lawful discharges in that behalf for me and in my 
name to Do Conclude and Finally in as full Large and ample 
a manner as I may Might or Could Do were I personally present 
Ratifying Allowing and Confirming all and whatsoever my said 
Attor. shall legally Do or Cause to Be Done herein given under 
my hand and seale ye I7th Day of April 1703.*^ 

"Henry Bakee. 

"Sele & Delivered in presence of 

"Richard Baefield.^' 

•Col. Rec. Vol. 1—587. 

^This was the form for granting power of attorney. As such was generally 
given only to attomeys-at-law, I quote it. 



The Nobth Caeolina Colonial Bab 11 

For a nimi'ber of years after this we get no important records 
bearing on attorneys. The colony was apparently too busy fight- 
ing Indians to think of anything else. 

In 1718, however, we get another glimpse of the governor's 
despotic influence over lawyers, and for many years thereafter 
the historical account of the colony is filled with chronicles of 
several members of the bar. One of the chief of these was Ed- 
ward Moseley, possibly the most prominent of colonial lawyers. 

Moseley came to the colony in 1704 and immediately began 
to play an important part in affairs of the province. He seems 
to have acquired a considerable practice and a still more con- 
siderable influence. He became surveyor-general, member of 
the council. Speaker of the Assembly, Chief Justice, and held 
other important offices at various times. 

The incident of 1718, spoken of above, grew out of a quarrel 
between Moseley and Governor Eden. During Eden's adminis- 
tration (1714-1722) the colony was much troubled with pirates, 
the most daring of these being a man by the name of Teach — 
more familiarly known as ^^Blackbeard." The government 
seemed to be absolutely unable to do anything with Teach. 
Several expeditions were despatched against him, but they did 
not stop his depredations. As a result, many in the province 
came to the conclusion that the government was secretly in league 
with the pirate. The following from Wheeler® tells about this 
excellently : 

"The character of Governor Eden suffered much by a sup- 
posed intimacy with Teach. Edward Moseley, who was a 
prominent man in the colony, declared that the governor could 
raise an armed posse to arrest honest men, though he could 
not raise a similiar force to apprehend Teach, a noted pirate ; 
and on Teach's dead body was found a letter of his (the Govern- 
or's) secretary, Tobias Knight, intimating proof of Knight's 
friendship and Eden's respect. 

"Moseley was subsequently arrested for a misdemeanor him- 
self, and tried by the General Court, convicted, fined one hun- 
dred pounds, silenced as an attorney, and declared incapable of 

"Historical Sketches, page 39. 



12 James Speunt Histoeical Publications 

holding an oflSce in the colony during three years. The Gov- 
ernor laid before the council (1719) an account of his proceed- 
ings against Teach. The council expressed their approbation 
of his conduct." 

Moseley may have been somewhat rash in his assertion, but 
it is hard to 'believe that he could have been malicious in making 
it. His general character seems to have been good, as his 
popularity attests. Whatever motive prompted him to make 
the charge, the result of the incident shows the power which 
the governor possessed over licensed lawyers. 

Shortly before this, — or in 1715 — two legislative acts were 
passed by the Assembly which had an important bearing on the 
bar. Both of these arose out of complaints against lawyers by 
the people. Fees must have become exorbitant, for we see 
several attempts to regulate them. Finally, after a great 
amount of quibbling, the following were set down as legal fees : 

attoeney's fees® 

lbs. s. d. 

For every cause in General Court. 10 

For every indictment or information on a 

Bill Found 2 10 

For same in Precinct Court 5 

The second resulted from complaints caused by commission- 
ers and minor court officials — ^who were especially exorbitant — 
acting as attorneys. The act reads : 

"An Act relating to the Justice Court of Pleas, and to pre- 
vent the Commissioners and other inferior officers of the said 
courts pleading as Attorneys. 

I. It is enacted by His Excellency the Pallatine and Lords 
Proprietors of Carolina and with the advice and the consent of 
this present General Assembly now met at Little Eiver for the 
No. Part of the said province. 

"II. And It is Hereby Enacted that from Henceforward 
there shall not be at one time more than one of the Lords Pro- 
prietors Deputies Commissionated to sitt as Judge or Justice 

•Col; Rec. XXIII— 86. 



Thb ^obth Carolina Colonial Bab 13 

in the Oeneral Court nor more than one of the said Deputies or 
Justices of the General Court commissionated to sitt or Act in 
any of the precinct courts of this Government. 

"III. Be it further enacted that hy the authority aforesaid 
no Commisrs., Sheriffs, Under-Sheriffs, or Clerks of any court 
within the colony shall be permitted to plead as an Attorney 
in the court where he oflSciates under pain of being fined the 
sum of ten pounds, one-half to the informer and the other half 
to the use of the Publick (except it be in his or their own cause, 
or as General Attorney for persons out of the government). 

"IV. And provided also that this act nor anything therein 
contained shall not be construed and adjudged to prevent or hin- 
der anyone of the Commrs. of any court being assigned by the 
court to plead the cause of any person hereafter to be admitted to 
sue in Forma pauperis — such commr., or commrs., not giving 
judgment in the said case, anything herein before contained to 
the contrary notwithstanding."^^ 

Edwaed Moseley^ Speaker. 

Chas. Eden, 
N. Chevin, 
C. Gale, 
Francis Fosteb, 
L. Knight. 

This act was in force for about thirty years, but it does not 
seem to have helped matters to any extent. It was repealed 
in 1746. 

The next record of particular importance comes in 1722. 
This record is of interest in that it involves one of the prominent 
lawyers of the day and shows the boldness of his spirit. I find 
the record set down in Hawk^s History of North Carolina. 

ABATEMENT OF A SUIT BY SEASON OF THE PLAINTIFF's OUTLAWEY 

"1722 — ^And now here at this day, came the said Kobert Pey- 
ton, by Daniel Richardson, his attorney, to prosecute his suit 
against Thomas Swann, for speaking and uttering divers false 
and scandalous words, to-wit, that he, meaning the said Robert 

»Col. Rec. XXIII— 16. 



14 James Sprunt Historical Publications 

Peyton, and s-peaking of him as lie had served as foreman of a 
jury in Curratuck — was foresworn, and made the rest of the 
jury forswear themselves; from which said false and scandal- 
ous words the said Peyton saith he hath damage to the sum of 
100 lb., and therefore brings the suit, etc. 

"And the said Thomas Swann, in his own proper person (he 
was one of the attorneys of the province) comes and defends the 
force of the injury, etc., and for plea says, that the said Peyton, 
his action, aforesaid, against him the said Swann ought not to 
have and maintain, and for proof thereof produces here in court 
a certificate under the colony seal of His Majesty's dominion 
of Virginia, whereby the said Peyton appears to be outlawed by 
the General Court of the said province. Whereupon the plain- 
tiff prays leave to discontinue his suit. Wherefore it is con- 
sidered that the said Peyton may go from here in mercy, and 
the said Swann may go without day. And the said Peyton pay 
cost alias execution." 

The fifteen years following this episode was an eventful per- 
iod in North Carolina. The conflicts between the people and 
their government increased in number to such an extent that at 
last the proprietors gave up and sold their rights to the King. 
Then many years were spent in trying to straighten out the diffi- 
culties, but the efforts brought on only the more conflicts. There 
was struggle between the people and the King, through his 
governor, over the currency, over property rights, over the 
courts, over taxes, — in short, over everything; for the people 
were rapidly becoming tired of foreign rule. They were begin- 
ning to acquire the spirit of the Eevolution and of independ- 
ence. 

In all these struggles we find among the leaders several mem- 
bers of the colonial bar. Especially prominent among these 
was Edward Moseley, long the leader of the so-called popular 
party. An account of his deeds alone, or an account of the 
deeds of many of his brother lawyers would easily fill volumes. 
It all goes to show that in colonial times — as indeed in any time 
— though the attorneys may have had numbers of avaricious, 
ambitious, and selfish men among them, there was a sufficient 



The Nobth Caeolina Colonial Bab 15 

number of good, unselfish, and patriotic men among them to 
save the name of their profession. 

The effect of the conduct of those lawyers who were seeking 
only their own welfare was strong enough, however, to lead to 
great protest among the people. As the old law did not provide 
sufficient remuneration to the lawyers they constantly avoided 
it. Many were extremely greedy in demanding fees. Again, 
through intrigue, they would have even the minor cases con- 
tinued from court to court, and thus add to their receipts. They 
were aided in this by many of the minor court officials and in 
some cases by the more important officials, who would add to 
their gains by the same means. The people rebelled. As a 
result several measures were passed r^ulating the fees of the 
officials and also of the attorneys. The most stringent of these 
came in 1743, namely: 



"An Act to ascertain what attorneys' fees shall be taxed and 
allowed, in any suit of Action brought in any of the Courts of 
Record in this province. 

"I. Whereas there is no Fee, by Law, allowed to be taxed in 
any Bill of Costs, sufficient to compensate any attorney for his 
trouble for prosecuting or defending any suit or cause in any of 
the courts of the province. 

"II. Be it therefore enacted by his Excellency, Gabriel 
Johnston, Esqr., Governor, by and with the advice and consent 
of this Province, and by the authority of the same that from 
and after Ratification of this Act, the several and respective At- 
torneys' Fees herein-after mentioned shall be taxed and allowed 
in the courts following ; that is to say, in the General Court, on 
any action brought, or suit commenced there, or by Petition, 
Thirty Shillings, Proclamation money. 

"III. And to the end that such fees shall be received and paid 
to whom the same shall be due. Be it enacted, by the Authority 
aforesaid. That upon Dismission of any suit, verdict for the 
Plaintiff or Defendant, or that the Plaintiff shall become non- 
suit, or the suit otherwise discontinued, the clerk of each and 
every of the said and respective Courts shall insert an Attorney's 
Fees in the Bill of Costs taxed in the said cause, and shall cause 



16 James Spbunt Histoeicai. Publications 

the same to be levied as other fees, and paid to the parties who 
have a right to receive the same. 

"IV. Provided always, That the Fees above-mentioned for 
suits commenced as aforesaid, in the county courts, shall not be 
allowed or taxed on appeals brought from any Justice or Jus- 
tices, in the said Courts, on the Law for Tryal of small and 
mean causes. 

"V. And be it further enacted, by the authority aforesaid, 
that if any practicing attorney in any court of record in this 
Province, shall neglect to perform his Duty in any action in 
which he shall be retained, or commit any fraudulent practice, 
said attorney shall be liable to an action on the case at Common 
Law, in the General or County Court in this Province, to the 
party injured; and on the verdict passing against him, Judge- 
ment shall be given, by the said court, for the Plaintiff, to re- 
cover Double Damages with costs of Suit." 

What was said about the act of 1715 to regulate fees — ^that 
there was much preliminary quibbling before it was finally 
passed — ^may be said, with still more emphasis, concerning this 
act of 1743. The bill was introduced in the Assembly several 
times before it finally received attention. There it was passed 
up to the council, by which body it was amended. The amend- 
ments were in part unsatisfactory to the Assembly, and the two 
Houses entered into considerable argument before it was finally 
passed in the above form. 

Another bill bearing on attorneys was introduced at about the 
same time as the above one. This second bill was concerning 
the admission of candidates for the bar. To repeat, the appoint- 
ment of attorneys during the period was left entirely to the Gov- 
ernor, though the custom was for the Chief Justice to examine 
candidates and recommend them to the governor. 

The Assembly quite justifiably felt that this was not right. 
Hence it prepared a bill providing for regular examination of 
candidates. It was passed and sent to the Council. The Council 
amended it and sent it back to the lower house; as the latter 
would not accept the amendments, the bill was temporarily lost 




The North Carolina Colonial Bar 17 

We next hear of it in 1753. The following House records 
tell us of its treatment this time, namely : 

February, 1753. 

"Introduced by Mr. Vail and Mr. Bartram: The bill di- 
recting the examination and admission of persons hereafter to 
be permitted to plead or practice the law in this province.*^ 
April 9, 1753 : 

"On reading the bill directing the examination and admission 
of lawyers hereafter to be permitted to plead, etc. This House 
was pleased to send the following message, to-wit 

Mr. Speaker, and Oentlemen, etc. : 

"We oibserve that in the bill directing the examination and 
admission of persons hereafter to be admitted to plead and prac- 
tice the law in this province, your House has thought fit to dele 
the following clause And if any attorney shall act contrary to 
his duty, the Governor and not less than five of the Council upon 
complaint and proof thereof, made before them, may supercede 
such attorney's license, and suspend him for a time, or disable 
him forever, as they shall think just. 

"We apprehend that if complaint against practices of the 
law, are not to continue to be cognizable before the commander- 
in-chief of the Council where complaints against all officers in 
the province are cognizable, and by whom they may be suspend- 
ed; it will be difficult, if not impracticable, for his Majesty's 
servants to have relief against the misdemeanors of the Gentle- 
men of that profession. We, therefore, cannot recede from our 
amendment, but desire your concurrence, which if your House 
agrees to, please to send two of your members to see the same 
done."^2 

With this action on the part of the Upper House, considera- 
tion of the bill again closed. Nevertheless, the people were de- 
termined that some action should be taken in regard to better 
control of lawyers, and their demands were finally complied 
with, as we shall see later. 

»Coi. Rec. Vol. V— 42! 

»Col. Rec. Vol. V— 49. 



18 James Speunt Histoeical Publications 

These struggles over the lawyers, however, made up but a 
small part of the strife of Governor Johnston's administration 
(1734-52). The main part of it was on account of currency 
legislation, and of quit-rent legislation. Governor Johnston 
appears to have been in trouble with the Assembly, with his 
Council, and even with his home government. In 1748, in fact, 
a strong effort was made to displace him. In this effort Henry 
McCuUoh, a man of considerable property in the colony, took a 
prominent part. In a series of memorials to the Board of Trade 
of London he recounted the misdeeds of the Governor. I quote 
some extracts from these memorials, as they have an important 
and interesting bearing on our subject: 

"To the Board of Trade : 

"When your memorialist sent a letter of attorney to two law- 
yers to act for him, the answer was, that they, or any other law- 
yer in that province durst not attempt to act in any matter 
against the said Governor (Johnston) for as they had the liberty 
of pleading by license from him only, he in that case would with- 
draw the said license and so prevent them from pleading."^^ 

"The attorneys and lawyers of the courts are under such dread 
of having their licenses recalled, and consequently deprived of 
getting their Livelyhood that they are unwilling to give their 
evidence in any matter, which hath prevented proof being made 
of what was charged in the relation to the Governor's arbitrary 
manner of proceeding in Injunctions."^* 

Johnston made a reply to the charges of the memorialist, 
whereupon McCuUoh defended his position in another memorial. 
In this we find the following : 

"What your memoralist charged in relation to injunctions 
hath to his knowledge been frequently complained of by all the 
lawyers in the said colony, and if the Governor had been inno- 
cent in that respect, he could have easily procured one or two of 
the most eminent of the lawyers there to certify to the falsity 
of the said charge, but that would not answer his purpose, 

"Col. Rec. Vol. IV— 1102. 
"Col. Rec. Vol. IV— 1111. 



The Noeth Cakolina Colonial Bab 19 

wherefore he hath enjoined silence under the penalty of with- 
drawing their licenses to plead."^*^ 

These memorials had no effect, for Johnston kept his office 
until his death in 1752. They give grounds to believe, never- 
theless, that Governor Dobbs, — ^when he himself was accused 
of intimidating lawyers — ^was right in saying, "That he was not 
as arbitrary in his official conduct as Governor Johnston, in 
that he never disbarred attorneys whom he disliked, at his own 
sweet will, as Governor Johnston did in the cases of Mr. Hodg- 
son, then Speaker, and Mr. Samuel Swann, afterwards, 
Speaker."i« 

One other thing bearing on our discussion remains to be no- 
ticed as occurring in Johnston's administration. In 1749, a 
general revisal of the laws of the colony was made, and in this 
revisal, certain English laws were declared to be in force in the 
colony. Among these was a provision providing for the punish- 
ment of an attorney found in default ; also, among these was an 
act requiring the practitioners of the law to take the oath, and 
subscribe the declaration therein mentioned. ^"^ 

In an entry in a court record for 1753, we get an example of 
the formality of admission of lawyers who were already li- 
censed practitioners outside of the colony. It is : 

At a council 1753. 

"Mr. Richard Neale produced a certificate of his Admission 
as an Attorney from the Clerk of the Court of the King's Bench 
in England, which being read, he took Oaths by Law Appoynted 
to be taken, Made and subscribed the Declaration against Trans- 
substantiation and took the Oath of an Attorney."^® 

In the administration of Governor Dobbs there are again 
signs of dissatisfaction over the method of control of attorneys. 
In a report of the Committee on Propositions and Grievances, 
made Jan. 9, 1755, there is the following entry : 

(5th) — "That the growing Number of Attorneys (occasioned 
by want of a proper method of Enquiring into their Probity, 

i»Col. Rec. Vol. IV— 1147. 
"Col. Rec. Vol. VI. Intro. XXXV. 
"Col. Rec. Vol. XXV— 320. 
"Col Rec. Vol. V— 31. 



20 James Spbunt Historical Publications 

good Demeanor, and Ability) And their Mismanagement of 
Causes either through Ignorance or Neglect, whereby their Cli- 
ents lose their Suits without any Remedy of Recovering their 
costs of such Attorneys, is a grievance."^® 

For some reason — ^possibly because it was controlled by some 
of the exorbitant lawyers complained of — the Assembly appar- 
ently did not sympathize with those complaining. In a report 
sent by Bo'bbs to the Board of Trade complaining of the defiance 
of the Assembly, he says: "They next, to show their power, 
expelled a member who had been expelled in a former Assembly, 
and who was now elected for a different county, under pretense 
that he had sworn rashly in a former committee (though this 
was a now assembly) the chairman of which, though no Magis- 
trate, having illegally taken upon himself to administer an oath ; 
but the true reason was his having brought in a Bill to lessen, 
the lawyers' exorbitant Fees, some of whom were so avaricious 
as to take a Fee of ten pounds, where only thirty Shillings was 
due by law."^^ 

Owing to the hesitation of the legislative body, therefore, 
action regarding the regulating of attorneys was delayed. In 
1760, after many years of demand for such an. act, the follow- 
ing law was passed : 

LVII. "And whereas, as well The Dignity of the Courts as 
the Security of the Suitors, depends greatly upon the capacity 
and pro'bity of Lawyers practising in the same : Be it therefore 
enacted by Authority aforesaid (Governor, Council, and As- 
sembly) and it is hereby Enacted, That no Person who hath not 
already obtained a License shall hereafter be admitted as an 
Attorney to practise the Law, or a Counsellor to plead in the 
Superior or Inferior Courts in this Province, unless he shall 
first have been regularly examined as to his knowledge in Mat- 
ters of Law, and the practise of Court, by some one of the Judges 
of the Superior Courts; and shall have obtained a certifi- 
cate under the hand of such Judge, recommending him to 
the Governor or Commander-in-'Chief for the time being, as 
properly qualified to practise the Law, or plead as aforesaid, 

"Col. Rec. Vol. V— 300. 
»Col. Rec. Vol. VI— 246. 



The Noeth Carolina Colonial Bab 21 

and shall likewise have obtained a certificate from the Justices 
of the Inferior Court of the County wherein he shall reside, 
certifying him to be a person of good character ; and no license 
shall be hereafter granted to any persons to practise the Law, 
or plead in any of the Courts of Law or Equity, until such 
certificates shall be by him obtained. Provided, That nothing 
in this Act shall be construed to prevent the Governor or the 
Commander-in-Chief for the time from granting a License to 
any person who shall remove from some other part of his 
Majesty's Dominions into this Province, without the certificate 
of a County Court within the same, so as such person shall 
bring credentials from the Governor or Judges of the Principal 
Courts of Justice of the Province, Colony, or Dominion, from 
which he shall have so removed, properly testifying his char- 
acter as aforesaid, anything herein to the contrary notwithstand- 
ing. 

LVIII. — ^Trovided also. That nothing herein contained shall 
be construed to debar any Lawyer called to the Degree of a Bar- 
rister in England from practising or pleading in any of the 
Courts of Judicature in this Province in the Manner as might 
have been done before the passing of this Act."^^ 

Before the passing of this act there was a great quarrel be- 
tween the Assembly and Governor Dobbs — a quarrel which 
directly concerned the lawyers of the province. In 1754 a bill 
had been passed establishing Supreme Courts and enlarging 
the jurisdiction of the county courts. This bill created the 
office of Associate Justice, "the appointees to hold during good 
behavior, and in the absence of the Chief Justice, they were to 
exercise full jurisdiction. As a qualification for appointment 
they were to have been Barristers of five years' practise in Eng- 
land or attorneys of seven years' practise in this or adjoining 
province. These features were objectionable to the Board of 
Trade, for they restricted the power of the King to select, thus 
encroaching on his prerogative and they also rendered justices in- 
dependent of the Crown."^^ As a result, the Board of Trade 
repealed this act in 1759. Since the Assembly and the Governor 

»Col. Rec. XXV — 448. 
«Hl8t. of N. C, Ashe, 297. 



22 James Speunt Historical Publications 

could not agree on a new act, the province was without a court 
law for nine months. The Assembly refused to pass any Aid 
Bill, providing appropriations for the government of the colony, 
until the proposed court law should be ratified. At the end of 
the nine months the Governor, therefore, gave in and allowed 
the law to be enforced for two years, provided the King was 
willing. For ten years thereafter this court law was renewed 
every two years, until finally a permanent one was declared to 
be in force. 

The associate judges appointed in 1761 under this new law 
were Marmaduke Jones, William Charlton, and Stephen Dewey. 
All of these men were highly capable, efficient lawyers, and had 
had an extensive practise. 

This disagreement over the courts, together with other points 
of conflict, led the assembly in its turn to complain against 
Governor Dobbs. They directed a set of twenty resolutions 
against him and petitioned the King for a redress of grievances 
(1760). Dobbs answered all of these resolutions in detail. Be- 
low is the sixth resolution and the Governor's answer : 

" 'That the granting Licenses to persons to practise the Law 
who are ignorant even of the rudiments of that science is a re- 
proach to Government, Disgrace to the Profession, and greatly 
injurious to Suitors.' 

'^Answer: The insinuated censure intended by this resolve 
will, I hope, appear to be undeserved when I acquaint your 
Lordships that to prevent my being teased to license persons 
unknown to me, I laid it down as a rule that I never departed 
from but in two instances, that I would never grant a license to 
plead either in the Supreme or County Courts until I had either 
a written or a verbal recommendation from the Chief Justice, 
which not only eased me of frequent solicitations, but would 
take off any charge against me if any improper persons were 
admitted. The only two instances in which I granted licenses 
without such recommendations were to Col. Euddick, a lawver 
of long standing in Virginia, who had lands on the Northern 
frontier of this province, and consequently had dealings here, 
and upon his visiting me at New Bern some time after my 



The Nobth Cabolina Colonial Bab 23 

coming into this government, he desired a license from me, which 
hy his long practise in Virginia and possessions in this province, 
I thought him entitled to, and without any recommendation from 
the Chief Justice I gave him one. The other instance was a 
gentleman a long practitioner at Norfolk in Virginia, who had 
obtained a power of attorney from Governor Tinker to sue for 
some lands he had a right to by Col. Bladen's daughter, which 
lay upon the boundary lines between Virginia and this province, 
he therefore applied to me for a License to finish these affairs, 
which I thought reasonable and granted it without waiting for 
the Chief Justice's reconmiendation, I never swerved from this 
rule which I laid down for myself in any other instance nay 
even since the Attorney General, Mr. Childs' arrival he recom- 
mended to me Mr. Lucas who came over with him for a license 
which I refused until I received a recommendation from the 
Chief Justice, Mr. Berry."^^ 

I have quoted this long passage from the Governor's letter be- 
cause it pictures the whole condition of the Colonial Bar at this 
period. On the one hand we have a view of the despotic Gov- 
ernor who shields himself behind the usages of custom. On the 
other hand we feel from his remarks the powerful spirit of the 
people which was constantly threatening his despotic rule. Even 
though we take the Governor's defence of himself as strictly true, 
we nevertheless feel that the jealously watchful eyes of the peo- 
ple alone restrained him from assuming entire control over the 
Bar. Nor do I mean to make any special criticism against 
Dobbs. The same is true of the other Governors — Johnston, 
for instance, with whom Dobbs compared himself as noted 
above. Where there is smoke there is fire. The people would 
not have made so many complaints against the methods of 
licensing lawyers unless the Governor had to some extent mis- 
used his power. 

In his answer to the next resolution against him, Governor 
Dobbs gives further light upon the conditions of the day. This 
resolution, the seventh, condemned him for accepting four 
"pistoles" as fees for licensing lawyers. He replies, "I must 

»Col. Rec. VI— 289-290. 



24 James Spbunt Histoeicai. Publications 

observe that it was constant usage to take a guinea for each 
license^ an exorbitant charge upon the lawyers whose usual re- 
taining fee in Chancery is ten pounds, sterling, instead of three 
pounds currency as the law allows." Further in his answer 
he shifts the blame for taking the four pistoles upon his secretary 
who apparently took them without Dobbs' knowledge. Whoever 
was to blame, the incident shows again the absolute need of the 
law of 1760, quoted above. 

Passing from the turmoil of the rule of governor Dobbs, we 
find still greater in that of Governor Tryon. Before entering 
into an account of these troubles, however, it will be interesting 
to consider a selection from a letter of Tryon's to the Earl of 
Shelboume, written in 1767. The passage which I quote below 
gives a good summary of the condition of the Colonial Bar in 
that year: 

"There is in this province no other class or distinction of 
lawyers than that of Attorney at Law. The same person issues 
ft writ, draws and files declarations, pleas, etc., and pleads the 
cause at the Bar, so that he is at the same time attorney and 
counsel for his client. None are entitled to act as Lawyers in 
the Province unless they have taken the degree of Outer Bar- 
rister in some of the inns of court in England, or have license 
from the Governor here, and in fact the last is the most general 
qualification under which the attorneys in the province act, al- 
though there have been some instances to the contrary, yet the 
general rule in obtaining such license is that the man who in- 
tends to apply for it shall have the Chief Justice's recommend- 
ation testifying the knowledge and probity of a candidate, and 
before obtaining such recommendation the Chief Justice did 
commonly examine the candidates. The recommendation and 
license obtained in consequence of it doth often restrict the 
candidates' practice to the inferior courts only, and such must 
obtain new recommendation and license before they are allowed 
to practice in the higher courts of judicature. The other and 
higher kind of license is without limitation, and the party ob- 
taining it may act as attorney and counsel in all the courts of 
law and as solicitor and counsel in the courts of equity in the 



The Noeth Cabolina Colonial Bab 25 

province. These licenseshave often been granted during the pleas- 
ure of the Governor only, but notwithstanding of this clause it 
has been determined in our Superior Court upon good delibera- 
tion that they ought not to be deprived of the exercise of their 
profession unless good cause is assigned and proved, since with 
no propriety it can be called an oflBce, being no more than a li- 
cense to follow a profession in which every man has the right 
to employ him or not according to the opinion he entertained 
of the knowledge and honesty of his lawyer. It is computed that 
there is about forly-five lawyers who practice in this province. 
Out of this body the Attorney General is taken commonly, and 
this oflBcer, within the province, has all the powers, authorities, 
and trusts that the Attorney and the Solicitor General of Eng- 
land have in that kingdom."^^ 

From the general tone of this letter we would think that the 
condition of the Colonial Bar had at last come to an equilib- 
rium; that the members of it were satisfied with it; that the 
legislative bodies were satisfied with it; and, finally, that 
the people were satisfied with it. Such was not the case. 
In the next year, 1768, a struggle broke out which was directed 
in part at least against the lawyers of the province. This strug- 
gle is known as the Regulators Movement. 

Space does not allow me to enter into a detailed discussion 
of this movement. Therefore I shall give as brief an account of 
it as possible, and quote only those documents which have the 
more important bearing upon our subject. 

In spite of Governor Tryon's assertion that lawyers were in 
no sense officials, but were merely professional men, the popular 
mind of the day classed them as officials in a certain sense. 
Therefore, the Regulators, who rebelled against what they re- 
garded as excessive taxes and exorbitant fees of court officials, re- 
belled also against the exorbitant fees of the lawyers. Governor 
Martin later reported that "the regulator troubles were provoked 
by the insolence and cruel advantages taken by mercenary, tricky 
attorneys, clerks, and other little officers, who practiced every 

»*Col. Rec. VII— 485. 



26 James Speunt Histobical Publications 

sort of rapine and extortion/'^*^ This statement summarizes 
the whole story. 

These regulators finally became so rebellious that they broke 
up the superior court at Hillsboro, September, 1770. We have 
the following record of this : 

Saturday, September 22, 1770. 

"Several persons stiling themselves Regulators assembled to- 
gether in the Court Yard under the conduct of Harman Hus- 
bands, James Hunter, Eedneys Howell, William Butler, Sam- 
uel Devinney and many others insulted some of the members of 
the Gentlemen of the Bar, and in a violent manner went into the 
Court House, and forcibly carried out some of the attorneys, 
and in a cruel manner beat them. They then insisted that the 
Judge (Eichard Henderson) should proceed to the Tryal of 
their leader, who had been indicted at a former Court, and that 
the Jury should be taken out of their party. 

"Therefore the Judge finding it impossible to proceed with 
honor to himself and Justice to his country, adjourned the Court 
till morning 10 o'clock, and took advantage of the night and 
made his escape, and the Court adjourned to Court in Course."^® 

The lawyers who were whipped were John Williams and Col- 
onel Edmund Fanning. Of Williams we know nothing further. 
Fanning has been defended by some historians and biographers, 
and scathingly condemned by others. It is not my purpose to do 
either. He was a man of much prominence in the province, a 
lawyer of extensive practice, and an important court oSicial. 
That he was exorbitant in his fees and merciless in his methods 
is established beyond question. 

This movement of the western counties was subdued by the 
best element in the province — the element which later rebelled 
and won independence. In its number were prominent members 
of the Bar. 

Out of the conflict several petitions were presented and I 
quote two below as they have an interesting bearing on our dis- 
cussion, though their influence was more indirect than direct. 

»Ashe, History of N. C, — 403. 
««Col. Rec. VIII— 235. 




The North Cabolina Colonial Bab 27 

PETITION OF MEN OF ORANGE AND ROWAN COUNTIES TO THE 

GOVERNOR, COUNCIL AND ASSEMBLY 

[In part.] "That we your poor petitioners, now do and long 
have laboured under many and heavy Exactions, Oppressions, 
and Enormity committed on us by Court oflScers, in ever Station : 
the Source of which our said calamity, we impute to the Counte- 
nance and Protection they receive from such of our Lawyers 
and Clerks as have obtained seats in the House of Kepresenta- 
tives, and who intent on making their own fortune, are blind to 
and solely regardless of their country's interest; are ever plan- 
ning such schemes, or projecting such laws as may best Effect 
their wicked purposes — witness the Summons and petition Act, 
calculated purely to enrich themselves, and Creatures at the ex- 
pense of the poor Industrious peasant, beside a certain air of 
confidence, a being a Part of the Legislature gives these Gen- 
tlemen, to the perpetration of every kind of Enormity within 
reach of their respective oflSces; And seeing Numbers either 
from Interested views, for the sake of threats, or from other 
sordid motive, are still so infatuated as to vote for these Gentle- 
men, whereby to advance them to that important Trust; tho' 
themselves and their f amilys sink as a consequence, and seeing 
these inconsiderate Wretches, involve your poor petitioners to- 
gether with Thousands of other honest industrious familys in 
the Common Destruction. We therefore implore your Excel- 
lency, your honours, and your worthys in the most supplicative 
manner, to consider of and pass an Act to prevent and effectually 
restrain every Lawyer and Clerk whatsoever, from offering 
themselves as Candidates, at any future Election of Delegates 
within this Province ; and in case any such should be chose, that 
choice shall be utterly void in the same manner as the Law now 
allows in case of Sheriffs being elected/'^'^ 

COMPLAINTS OF PETITIONERS OF ANSON COUNTY 

[In part.] "That Lawyers, Clerks, and other pensioners in 
place of being obsequious Servants for the Country's use were 
become a nuisance, as the business of the people was often tran- 

»Col. Rec. VIII— 81-82. 



28 James Speunt Histobical Publications 

acted without the least degree of fairness, the intention of the 
law evaded, exorbitant fees extorted, and the sufferers left to 
mourn under their oppressions. 

'^That an Attorney should have it in his power, either for the 
sake of ease or interest, or to gratify his malevolence and spite, 
to commence suits to what Court he pleases, however incon- 
venient it may be to the Defendant. 

"That unlawful fees should be taken on an Indictment, where 
the Defendant is acquitted by his Country, however customary 
it might be. 

"That Lawyers, Clerks, and others should extort more fees 
than was intended by Law." 

THEIR PBOPOSAXS FOE EEMEDY 

"That all debts above 40s. and under £10 be tried and de- 
termined without Lawyers by a jury of six freeholders whose 
judgment shall be final. 

"That Lawyers be effectually barred from exacting and ex- 
torting fees."^® 

In answer to these petitions and in an endeavor to improve 
existing conditions, for the next few years there was much at- 
tempt at corrective legislation, the effort being in part success- 
ful. Governor Tryon had already, in 1766, announced that no 
county court clerk or practicing attorney should be appointed 
a justice of the peace.^^ Ifow, in 1770, another fee-regulating 
act was passed, namely: 

AN ACT TO ASCERTAIN ATTORNIES' FEES 

I. Whereas it is necessary to ascertain what Fees Attornies 
may lawfully take and receive for their trouble in conducting 
Causes in the respective Courts in this Province: 

II. Be it therefore enacted by the Governor, Council, and 
Assembly, and by the Authority of the same. That it shall and 
may be lawful for each and every Attorney at Law to take and 
receive from their respective Clients the following Fees, to-wit: 

■ ■■ .^ I. Ml I. — , — — I .11 ■■■■■»■■ ■■ 1 ■■■!■■■■■ I ^■^^^^^^^^■^■^P^^i^W^— ^ 

28Col. Rec. VIII— 76-79. 
»Ashe, History of N. C.,— 328. 



The Noeth Cabolina Colonial Bab 29 

For every action in the Superior Court, except 
where the Title or Bounds of Land come in 
Question, the sum of. 2 10 

For every such action in any Inferior Court 15 

For every real action, or such as respects the 

titles of Lands 5 

For every Petition for the Recovery of Leg- 
acies, filial Portions, or Distributive Shares 

of Intestates, if in Superior Court. 3 10 

If in the Inferior Court 1 15 

For every opinion or advice in Matters Cog- 
nizable in the Superior Courts, where no 
suit is or shall be brought, or prosecuted, or 
defended by the Attorney giving such ad- 
vice, but not otherwise 10 

For every opinion or advice in Matters Cog- 
nizable in the Inferior Courts, where no 
suit is or shall be brought or prosecuted, or 
defended by the Attorney giving such ad- 
vice, but not otherwise. 10 

And every Lawyer exacting, -taking or demanding any greater 
Fee, or other Howard, for any of the above Services shall for- 
feit and pay Fifty Pounds for every offence; one Half to our 
Sovereign Lord the King towards defraying the Contingent 
charges of Government, and the other Half to the person who 
shall sue for the same; to be recovered by an Action of Debt, 
in any Court of Record in the Province having cognizance 
thereof. 

III. And be it further enacted, by the Authority aforesaid. 
That the Clerk of each respective Court within this Province 
is hereby directed, and required to tax in every Bill of Costs, 
where an Attorney shall have been actually employed by the 
Parly who shall recover, or be otherwise entitled to receive, 
such Fee as is by this Act allowed, and no more. 

IV. And Be it further enacted, That if any Attorney, in 
any Superior or Inferior Court shall wittingly or willingly 



30 James Spbitnt Histobical Publications 

be guilty of any Neglect in any Cause, the Court before whom 
such Cause shall be depending, on Complaint and Proof thereof 
made within Six Months after such Neglect, shall have full 
Power and Authority to order such attorney to pay all costs oc- 
casioned by such neglect And every Bill, Bond, Promise, or 
other Engagement, of what Denomination soever, for the Pay- 
ment of any other Larger Fees than before enumerated shall be 
utterly Void and of no Effect; any Usage to the contrary not- 
withstanding. 

V. Provided nevertheless. That it may be lawful for any 
Person, after the Determination of his Suit, to make his Lawyer 
a Larger Compensation for his Trouble, if he thinks he has 
merited the same; any Thing herein contained to the contrary 
notwithstanding.''^^ 

A year after the passage of this act another one, providing 
for further regulation of lawyers, was introduced, but as the 
Council and Assembly could not agree on its provisions, it 
failed to pass. Therefore with the above act, legislation in 
regard to the North Carolina Colonial Bar came to an end. 
With it ends our account of the history of the Colonial Bar. 
It would be interesting to go into a detailed account of the 
part North Carolina lawyers played in the struggle preceding 
the Eevolution and in the war itself; but to do so would require 
volumes. Everywhere among the patriot leaders we find law- 
yers in the front. Two of North Carolina's signers of the 
Declaration of Independence, for instance, were lawyers — ^Wil- 
liam Hooper of Wilmington, and John Penn, of Williamsboro. 
On the Committee of Safety, in the Provincial Congress, in the 
North Carolina troops, and finally among the men who organ- 
ized the government of the State, we find lawyer after lawyer. 
It is impossible to give the names of all — for in some cases we 
are not sure that men supposed to be attorneys were regular 
practitioners — and it would be unfair to give a partial list. 
Suffice it to repeat that the Colonial Bar did honor to itself in 
the Itevolutionary period. 



\ 



«^ol. Bee. XXIII— 788-789. 



The Noeth Cabolina Colonial Bab 31 

In closing I will make one more quotation from the Colonial 
Records, namely: 

"In the matter of complaints against the lawyers of that day, 

it will be well enough for those of the present day, and for 

others, to remember generally that while as a rule lawyers have 

been among the boldest and best patriots and the earliest and 

most earnest advocates of civil liberty, there is no rule without 

its exception, and especially that the lawyers of that day were 

made such by License from the Governor, who received for his 

own use a fee for every license issued. It must be remembered 

too, that in those days the principal remuneration of the Chief 

Justice arose from fees in suits originating and pending before 
him/'3i 

The writer was considering the complaints made by the Regu- 
lators, in particular, but his words apply to the whole Colonial 
Period. As said in the first part of this article, the majority 
of the records which we possess are of a hostile nature toward 
the lawyers. There is a continual chain of complaints made 
against them, and as a result a chain of legislation directed 
towards their regulation. When we consider the method by 
which they were licensed, however, we do not wonder that there 
were many attorneys who darkened the name of their noble pro- 
fession. On the other hand we know that many of the lawyers 
of the period were good, honest men, ever caring for the welfare 
of the community. That they possessed ability in addition is 
proved by the fact that several of the province's governors were 
of their number, and that the majority of the attorney-generals 
and a large number of the judges of all the courts were chosen 
out of their number. Remembering, then, the prominent part 
played by the best lawyers in the province and forgetting the 
misdeeds of those who never attained any great eminence, we 
must conclude that honor and admiration is due the North Car- 
olina Colonial Bar. 



»Col. Rec. VIII, Intro. XVIII-XIX. 



THE GRANVILLE DISTRICT 

BY 

E. Merton Coulter 



CONTENTS 



ixtroductiox. 

Location — Boundabies — Sukveys. 

Granville's System — ^Land Agents. 

Quit Rents and Their Collection. 

Abuses by Granville's Agents. 

Riots and Disturbances. 

Immigration into District. 

Encroachments and Conflicting Claims. 

Disadvantages of Granville's District to the Colony. 

Purchase by the Crown Advocated. 

District Confiscated by State. — ^Attempts at Regain- 
ing It. 



THE GRANVILLE DISTRICT* 

In 1663, King Cbarles II of England granted to eight of his 
noblemen a large district of land, embracing most of what is 
now the southern half of the United States. Like most other 
grants in those days, it extended westward to the vague and unr 
known "South Seas." The government set up by the Lords 
Proprietors, as the noblemen were denominated, affected only 
the Atlantic Seaboard of the present states of North and South 
Carolina. The form of government they attempted to admin- 
ister was a grotesque figment of John Locke's imagination. 
"Locke's Grand Model," as the instrument was called, failed 
utterly, and so was soon abandoned. A more popular form of 
government was substituted, but the princely domain from 
which the Lords Proprietors had hoped to make their fortune 
proved, nevertheless, a source of endless trouble and vexation to 
them. It was no less disturbing to the colonists. So, in 1728, 
the Lords Proprietors, with one exception, sold out their prop- 
rietary to the King. The price paid was 2,500 pounds^ to each of 
the seven proprietors selling, with a lump sum of 5,000 
pounds for all arrears of quit-rents and other rents.^ The people 
of the colony received the news of the sale with unbounded joy, 
as ushering in a day of deliverance from all their evils. 

THE DISTRICT GRANTED 

The nobleman who continued to hold his interest in the pro- 
prietary was John Lord Carteret, soon afterwards made Earl 
of Granville. He petitioned the King to be allowed to retain 
his one-eighth interest in Carolina, as the territory had been 
named. King George, upon the advice of the Board of Trade 
and Privy Council, decided that Lord Carteret should be al- 
lowed to retain one-eighth of the whole district formerly granted 

* This paoer was awarded the second prize, given by the North Carolina 
Society of Colonial Dames of America for research in North Carolina Colonial 
History by undergrauate students in the University. 

^At this time the English pound was worth |1.66. 

«C. R. Vol. Ill— 37-38. 

35 



36 James Speunt Histoeical Publications 

to the Lords Proprietors. But in so retaining his one-eighth 
part he was to surrender to the King his claim to the other 
seven-eighths, and also give up all power of government over the 
whole proprietary of Carolina. He was to hold his one-eighth 
share as a feudal seignior of the Crown, — possessing only prop- 
erty rights in the colony, and was relieved of the expense 
and trouble of governing it. In surrendering the gov- 
ernment of it, he relinquished all powers, in the com- 
prehensive language of the grant, "of making laws, call- 
ing or holding of assemblies, erecting courts of justice, appoint- 
ing judges, or justices, pardoning criminals, creating or grant- 
ing titles of honor, making ports or havens, taking customs on 
goods laden or unladen, making and erecting counties, forts, 
castles and cities, or furnishing them with habiliments of war, 
incorporating cities, boroughs, towns, villages, tt-aising, em- 
ploying or directing the militia, making war or executing mar- 
tial law, exercising any of the royal rights of a county palatine, 
executing any other prerogatives, pre-eminences, rights, juris- 
dictions, and authorities of, belonging or relating to, the ad- 
ministration of the government of the said one-eighth part of 
the said province."^ 

Some of the old ideas of feudal land tenure were adhered to 
by the King in this grant. In order to impress upon Earl Gran- 
ville the allegiance he owed to the King as the supreme land- 
lord, George II included the following clause in the indenture : 
u ^ ^ ^ yielding and paying to his said majesty's heirs 
and successors the annual rent of one pound, thirteen shill- 
ings, and four pence, payable at the Feast of all Saints forever : 
and also one-fourth part of all gold and silver ore that shall be 
found within the said one-eighth part of the said premises 

4& -jfr -jfr »4 'pjjjg practice of exacting a nominal rent had 

also been applied in the case of the proprietary govern- 
ment, the Lords Proprietors being required to pay one-fourth 
part of all gold and silver ore within the limits of their grant 
and the yearly rent of twenty marks. ^ 

«C. R. Vol. IV— 662-663. 

*C. R. Vol. IV— 663. 

»State Records Vol. XI— 80-101. 



The GeuAJ^ville Disteict 37 

location boundabies surveys 

Although the seven Lords Proprietors sold their share of 
Carolina to the crown in 1728, there was no definite action 
taken with regards to Granville's one-eighth part until 1744, 
when the foregoing conditions were stipulated in the formal 
grant. Provision was made in this grant for the survey of 
Granville's share by ten commissioners — fivCj representing the 
King, to be appointed by the governors of North and South Caro- 
lina jointly or by the governor of North Carolina alone, in case 
of disagreement, and five to be appointed by Earl Granville.® 
These commissioners were to decide where the one-eighth part 
should be laid off, and whether it should be a solid tract or be 
divided among the three colonies of North Carolina, South 
Carolina, and Georgia, the latter having also been erected 
within the proprietary's original boundaries. The commission- 
ers appear to have been influenced by very few considera- 
tions for the King, Granville, or the people; for their sole ob- 
ject seems to have been to survey the land in the quickest and 
easiest way. So they naturally began where one line was 
pretty definitely established; namely, the boundary between 
North Carolina and Virginia. Their decision was to sur- 
vey it all in one tract lying directly south of the Virginia 
line in the province of North Carolina. According to the report 
sent to the King, "They did immediately proceed to set out and 
allot to the said John Lord Carteret one full-eighth part of the 
province of Carolina in one entire separate district in the 
province of North Carolina next adjoining and contiguous to 
the province of Virginia ^ ^ * and so west as far as the 
bounds of the charter granted to the Lords Proprietors of Caro- 
lina by His Majesty King Charles 11."'^ 

The commissioners selected to run the southern boundary of 
the district began to survey the line in the winter of 1743-44, 
beginning on Hatteras Island at 35° 34' N. Latitude, whicfh 
was to bound the district on the South. They were soon so ob- 
structed by the swamps and morasses that they ran the line 



«C. R. Vol. IV— 659-660. 
*C. E. Vol. IV— 660. 



38 James Spbunt Historical Publications 

only to the town of Bath. In the spring of 1746 the line was 
taken up at Bath and was carried westward to the Haw River, 
passing through the present towns of Snow Hill, Princeton, 
and Smithfield.® Here the survey was stopped because of the 
country "being very thinJy peopled, nor can we be supplied 
either with corn for the horses or provisions for ourselves and 
those employed by us, there being no inhal^itants that can 
assist us to the west of Saxapahaw River."® In the following 
October the boundary was pushed to Rocky River, which 
marked the end of the line up to 1766. The surveys and 
distances were as follows: From Hatteras Island to Bonner's 
Field (near Bath), 90 miles; thence to Haw River, 104 miles; 
continuing to Rocky River, 87 miles. ^^ The line was finally 
run to the Blue Ridge Mountains by Governor Martin in 
1774.11 

This immense tract of land, at least sixty miles wide, lying 
between 36° 30' and 35° 34' N. Latitude, was bounded on the 
east by the Atlantic Ocean and on the west, according to the 
language of the grant, by the "South Seas." It embraced at 
least one-half of the province of North Carolina, the lower 
boundary line running along the southern borders of Chatham, 
Randolph, Davidson, and Rowan Counties, a little below Ca- 
tawba County, and on westward.!^ This territory came to be 
known as the "Granville District" and proved to be a source of 
endless trouble and vexation to the inhabitants and a serious 
menace to the welfare of the whole province. Earl Granville 
referred in his titles to this district in the following way: "The 
sole Lord or Proprietor of a certain District, Territory or 
Parcel of land, lying next to the province of IsTorth Carolina in 
America." This tract owned by Earl Granville was the better 
part of the province. The land was much more fertile, it was the 
ysLTt first settled, and two-thirds of the people lived within its 
bounds. ^^ 



«C. R. Vol. VII— 156-157. 

•C. R. Vol. IV— X-XI. 

"C. R. Vol. VII— 156-157. 

"Ashe's History of North Carolina, 724 (map). 

«C. R. Vol. V pp. LIV et seq. 

"Williamson's History of North Carolina, p. 105. 



The Granville Disteict 39 

GBANVILLE's system LAND AGENTS 

Earl Granville thus owned and controlled the better part of 
the province. In his power lay the welfare of the whole colony 
to a large extent. He, alone, determined the policy he would 
pursue concerning his possessions. He was a virtual ruler of 
the people of his district in those things that touched them 
closest, property rights. He indeed had no power of appoint- 
ing governors, but the people cared very little who was gover- 
nor as long as they were not disturbed in the possession 
sion of their lands. Earl Granville set up a territorial system 
of land tenure over which neither the crown nor the colony had 
any control. The assembly's authority was thus virtually nulli- 
fied in. the most prosperous part of the province in matters per- 
taining to land-holding and this district contained two-thirds of 
the people. The land was held by the tenants in fee simple, 
with a certain fixed quit-rent to be paid annually. A fee was 
charged for making entries of lands. 

To administer his rents, and to look after his interests in 
general. Earl Granville appointed land agents, very often two, 
who worked conjointly, or the one alone, when the other should 
be out of the colony or should die. He also had a surveyor, 
deputy surveyors, entry takers, and many other inferior offi- 
cers. He established a land office in Edenton, but appears 
never to have thought it worth while to establish one farther 
west as the district grew in population westward. His agents 
proved on the whole to be very dishonest and inefficient men. 
They were paid in such a way as to presumably increase their 
efficiency, for Earl Granville at least; but, in fact, the system 
led them into exacting exorbitant rents from the tenants. Up 
to 1762 the agents were paid 10 per cent, of all they should 
collect and 10 per cent, of all they should remit to Earl Gran- 
ville. This led them into dishonest dealings both with the 
Earl and with the people. So, in order to lessen the abuses, 
the Earl changed their payment to 6 per cent, of all monies and 
produce received and 5 per cent, of all remitted, with a salary 
of 200 pounds sterling to each agent. ^* 

^«WllUamson's History of North Carolina, 105-106. 



40 James Spbunt Histobical Publications 

QUIT BENTS AND THEIB COLI.ECTION 

The collection of quit rents caused endless disturbances in 
the district There was no system whatever. Kent laws were 
lacking or wholly inadequate. The agents were dishonest Ac- 
cording to a set of general instructions, issued by Earl Gran- 
ville, his agents were to charge four shillings proclamation 
money, or three shillings sterling for every hundred acres let to 
tenants. ^^ In some cases, the products of the land were re- 
ceived in lieu of money. Tables of fees and rents, sent over by 
Earl Granville, were never made public by his agents. Records 
of grants and entries were carelessly kept. Frequent changes 
in agent added only to the confusion, as the books were always 
left in a very incomplete condition. One very serious draw- 
back to the efficient handling of quit rents was the lack of a 
rent roll giving the names of all the tenants and the amounts 
of land held by each. Owing to the general confusion, many 
people moved into the district and took up lands without making 
entries for them. Numerous laws were passed directing the 
compilation of a rent roll. By these laws the people who had 
taken up lands without having made entries for them were 
allowed to retain their lands provided they registered their 
claims within twelve months. ^^ The question of providing an 
effectual rent roll was constantly discussed in the Assembly. 
To keep the rent rolls as complete as possible an act was passed 
by the Assembly in 1748 requiring all transferences of land, 
either by sale or will, to be registered in the Court House of the 
county in which the land lay, or in the land office at Edenton. 
One great hindrance to making a complete rent roll was Earl 
Granville's half-hearted co-operation and (direct refusal, in 
some cases, to bear his part of the expense of compiling one.^'' 

But the colony seems never to have got a satisfactory rent 
roll or rent laws ; for in 1771, Governor Tryon was begging the 
Assembly to pass laws that would be as effective as the ones that 
Virginia had. But, significantly enough, the bills were killed 
in the Assenibly through the opposition of the representatives 

«C. R. Vol. VI— 441-445. 

»«Martln*8 History of North Carolina, p. 52. 

"C. B. Vol. V--415. 



The Granville Distbict 41 

from the Granville district, "who apparently had no interest 
in the event"^® To facilitate the settlement of the province and 
to collect the back rents, Governor Martin, in 1773, recom- 
mended that a rent law be passed remitting all back rents be- 
yond 1771, provided the tenants would register their lands.^® 
The reciprocal benefits were extended to the Granville District 
since it contained, in Governor Martin's opinion, the most val- 
uable part of the province not yet granted. "Inhabitants of 
this country," he wrote to Lord Dartmouth, "look with greatest 
avidity toward the territory of Earl Granville, which compre- 
hends almost, if not all, the valuable lands in this province at 
this day ungranted/'^o 

The failure to collect arrears of quit rents was a frequent 
subject of complaint by the governors. Governor Johnston, in 
1750, was 12,000 pounds behind on his salary because Earl 
Granville received more than half of the quit rents of the prov- 
ince; and the quit rents due to the crown could not be col- 
lected.^^ A stringent act was passed in 1754, applying to Gran- 
ville's District also, which authorized the sheriff of the county 
to seize slaves, goods, or chattels, and sell them within five days 
for arrears of quit rents.^^ In 1749, however, the payment of 
quit rents had been made easier by a provision making re- 
ceivable inspectors notes for tobacco at one penny a pound, or 
for indigo at four shillings a pound, proclamation money.^^ 

ABUSES BY Granville's agents 

The system Earl Granville set up worked without very much 
friction for the first decade. While this great private project 
was yet young the Earl showed considerable interest in it. But 
he was soon busied with the intrigues of home politics, leaving 
his immense estate in the hands of his agents to do with much as 
they liked. Being for the most part dishonest men, and un- 
restrained by any watchful authority, they soon began to exact 
excessive fees from the tenants, and to collect outrageous quit 

"C. R. Vol. VIII— 524. 

»C. R. Vol. IX— 671-672. 

»Ebid Vol. IX— 671-672. 

»C. R. Vol. IV— 1088. 

«State Records Vol. XXV — 308. 

"State Reports Vol. XXIII— 3i0. 



42 James Spbunt HisTOKiCAii Publications 

rents. Their systematic pillage of the tenants became a great 
menace to the welfare of the province and made the existence 
of the Granville District the most dangerous and disturbing 
force in colonial North Carolina. Within a decade after Gran- 
ville received his share of Carolina an investigating commit- 
tee, appointed by the Assembly, reported the district a nuisance 
and a hindrance to the well-being of the colony.^* 

The exactions of the agents became so flagrant and unbearable 
that, in 1758, numerous citizens of the district petitioned the 
Assembly to redress their grievances. As a result a joint Com- 
mittee was appointed by the two houses of the Assembly with 
powers to summon persons and to produce papers.^^ The com- 
mittee made a conservative report in which they said that no 
larger fees had been charged by the agent than Earl Gran- 
ville's instructions called for. They most probably came to this 
conclusion, however, because, "they finding it worse for their 
interest to make up matters for Corbin against whom the great- 
est charge was laid, they changed sides for a valuable consid- 
eration and by the report of the committee, they had no 
redress."^^ 

But they discovered a host of irregularities that attest the 
resourcefulness of the agents. A very frequent practice was to 
grant the same tract of land to as many as three different 
persons, and charge a fee for each entry. The case of one 
Arthur Moore is produced, in which Moore entered a tract of 
land and paid the entry fee to the agent, Francis Corbin. Moore 
was to have it surveyed within twelve months and then return 
to get the deed. Having complied with the conditions, he 
returned for his deed. Upon investigation Corbin found that 
one Becton already possessed a deed for the land ; so he refused 
to grant a deed to Moore and refused also to return the entry 
fee. In the meantime, Becton sued Moore in ejectment and, 
upon producing his deed, got judgment against him, and had 
him imprisoned two months until he could pay the costs of the 
suit. Moore had paid for surveying the lands three pounds 

2*C. R. Vol. V pp. LIV et seq. 
»C. R. Vol. V — 1015-1016. 
»C. R. Vol. VI— 294. 



The Granville District 43 

nineteen shillings and ten pence, to the same surveyor who 
had previously surveyed it for Becton. In many cases an entry 
would be made under one agent but before the survey could be 
made and the deed obtained the agent would be succeeded by 
another, who would grant the land to some one else, charging, 
of course, an additional fee. Another case of abuse was pro- 
duced, in which a man who wanted lands already taken up, 
bribed the sheriff to change the name in the entry book and 
issue a deed to him accordingly.^''^ The agents used another 
particularly clever scheme to defraud the tenants. Many of 
the patents for land were signed merely "Granville, by his 
attorneys ***.'' The agents claimed these patents 
were defective and totally invalid, since the Earl's title of honor 
had been omitted. They claimed all patents must be signed 
"The Right Honorable Earl Granville, by his attorneys * * ." 
In this way they played upon the ignorance of large numbers 
of tenants so as to frighten them into making new entries, for 
which, fees, sometimes double those prescribed, were charged. ^^ 
The regular fee for making an entry was one pistole.^® About 
four pounds were charged for using a certain kind of cipher, 
"Which without authority, they were pleased to affix to a war- 
rant of survey."^^ 

The agents were equally as dishonest to Earl Granville as 
they were to the people. They kept back large amounts of fees 
beyond their prescribed per centum and salary. One agent 
upon going out of office, counselled his successor to remember 
the proverb of the new broom and not remit too much to the 
Earl for the first few years, as equal amounts would be ex- 
pected in the future. And, furthermore, the former agent 
might be apprehended.^^ The agents were banded together to 
defraud everyone in their way. Complaints of tenants became 
more frequent. The Assembly remonstrated with Granville, 
but to no effect, since it could pass no laws touching its agents. 
Complaints from both the Assembly and the tenants grew so 



«C. R. Vol. V— 1088-1094. 

"Williamson's History of North Carolina, 106-107. 

»A pistole was equivalent to one English pound. 

wwnilamaon's History of N. C. 107. 

"Ebid 108. 



44 James Spbunt HisTOBiCAii Publications 

frequent that Earl Granville became interested enough to write 

to his agent, Francis Corbin, in 1756, as follows: "Great and 

frequent complaints are transmitted to me of those persons you 

employ to receive entries and make surveys in the back counties. 

It is their extortions and not the regular fees of office which 

is the cause of clamor from my tenants. Insinuations are made, 

too, as if those extortions were connived at by my agents ; for 

otherwise, it is said they could not be committed so repeatedly 
or so barefacedly."^^ 

Thomas Child, Attorney General of the colony, and Francis 
Corbin, were joint agents for Earl Granville during a num- 
ber of years. They carried on a most subtle system of thievery 
and corruption, both with the people and with Earl Granville. 
Child was the master mind in the affair. When he went to 
England to better carry out his system, he appointed Colonel 
Innes to the lucrative land agency for a valuable annual con- 
sideration. Child wormed himself into the close confidence and 
favor of the Earl and represented to him the dishonesty of his 
agents. Whereupon, Granville took all the fees and put his 
agents on a salary basis. Being betrayed in this way, Innes re- 
fused to pay his annual stipulation to Child, whereupon the 
latter adroitly stopped the remittances before they reached 
Granville and took what he wanted. With Earl Granville's per- 
mission Child now turned Colonel Innes out of office and 
promptly sold the agency to Wheatly, a naval officer, for 1000 
pounds. Earl Granville about this time sent over a table of 
fees to be made public. Child advised Corbin not to publish the 
table and to charge the delinquency to Wheatly. This was done, 
and consequently Wheatly was dismissed. Child now had 
Bodly appointed "from whom he got about 2000 pounds and 
other presents of great value." Earl Granville at last in- 
structed Child to call Corbin, his accomplice in If orth Carolina, 
to account. Child advised him secretly not to account In this 
way strife would be stirred up between Granville and his agents 
and Child would consequently be sent over to adjust the diffi- 
culties. Just such dishonesty pervaded Earl Granville's entire 
system.^^ 

"^Williamson's History of North Carolina, 205. 
»C. B. Vol. VI— 292-296. 



The Granvtlle Distbict 45 

biots and distubbances 

When Francis Corbin did produce his table of fees the peo- 
ple readily accumulated a great amount of evidence of abuses 
by the agents — especially by one Haywood. Upon Haywood's 
refusal to return any of the illegal rents that had been exacted 
the ferment of the people increased. They had Haywood ar- 
rested and speedily brought to trial. During the trial he went 
home, where he suddenly died, and was secretly buried. When 
the prosecutors heard of this they believed it to be a false report 
inspired by Haywood. In their rage they went in a large body 
to his home, dug up the grave, and tore open the coffin. On 
finding the corpse they left satisfied.^* 

The people were by this time in no pleasant mood. They could 
obtain no redress nor could they get back any of the illegal rents 
that had been taken from them. The fees in Earl Granville's 
estate were double and sometimes triple the fees paid in the 
crown lands. And to aggravate conditions further, Granville's 
agents refused to receive payments in anything except gold and 
silver.^^ Unable to bear the abuses any longer and despairing 
of obtaining a redress of their grievances, a body of men, some 
say twenty, gathered from Edgecombe and Granville counties in 
the early winter of 1759, armed and mounted, and rode to 
(Sorbin's house near Edenton. Although they reached his house 
in the dead of night, they forced him to accompany them im- 
mediately seventy or eighty miles to Enfield.^^ Here they held 
him for some days until he could give bond with eight sureties, 
by which under penalty of 8,000 pounds, he promised to pro- 
duce his books within three weeks and return all the money 
above the regular fees. 

A few months after this riot the magistrates of Halifax 
county failed to nominate a sheriff. The governor proceeded to 
appoint one of the most active of the rioters and, as a conse- 
quence, the Assembly was unable to prevail on the sheriff to 
carry out prosecutions against the rioters. Members of the As- 
sembly accused Governor Dobbs of being in league with them. 

•*C. B. VI— 294-294. 
«K:J. B. Vol. V— 645. 
«»C. B. Vol. VI— >295. 



46 James Spkunt Histobical Publications 

The governor stoutly denied it and brought the charge that the 
Assembly had been favorable toward them. For some time 
the district remained in turmoil and confusion. The Attorney- 
General of the colony, Robin Jones, refused to prosecute the 
rioters through fear. He had agreed with Francis Cor'bin, for a 
large consideration, to be his counsel against the rioters. When 
the rioters heard of this they threatened dire vengeance and 
destruction on Jones, and forbade him to plead in the General 
or County Courts, "and frightened him so that he always car- 
ried pocket pistols about him."^*^ The rioters also threatened 
"to pull him by the nose and also to abuse the court."^^ 

The troubles became so serious that in May, 1759, the As- 
sembly passed the following resolution: "This house has re- 
solved that a reward of twenty-five pounds be paid out of the 
public treasury by a warrant from his Excellency the Governor, 
to each of the two persons who shall first make a full discovery 
on oath to the Chief Justice or Attorney-General, of the prin- 
cipal persons who have been concerned in the late riots, combi- 
nations and traiterous conspiracies, in that part of the province 
within the Eight Honorable Earl Granville's Proprietary on the 
condition of any of the said offences. To which (they) desire 
your Honor's concurrence."^® Attorney-General Jones demand- 
ed of the Governor that the rioters be punished. He affirmed 
that unless they were, there would be no safety or peace in the 
country. Francis Corbin now, instead of producing the books 
and remitting illegal fees, brought suit against four of the 
rioters, who upon refusing to give bail were thrown into prison at 
Enfield. The next day a large mob of people from the surround- 
ing country broke open the jail and released the prisoners. These 
rioters came from the district included in the present counties 
of Halifax, Nash, and Wilson. After these disturbances Cor- 
bin took flight and ordered the prosecution stopped. He knew 
he had done wrong things he could not justify; and Child 
thought the fault would be laid at Earl Granville's land office.*^ 

The Assembly was bitter against the rioters and laid much of 



"C. R. 295. 
»C. R. Vol. VIII-IX. 
»C. R. Vol. VI— 94. 
*«C. R. Vol. VI— 297. 



The Granville Disteict 47 

the trouble at the door of the governor. In 1760 they passed 
a resolution : "That though the governor was addressed by the 
Assembly in June last to take necessary measures to suppress 
the several mobs and insurrections which for many months, in 
violation of all law, have with impunity assembled in great 
num'bers in different counties, erected show jurisdictions, and 
restrained men of their liberty, broke open gaols, released male- 
factors, dug up the dead from the grave, and committed other 
acts of rapine and violence, no effectual steps have been taken 
to check the torrent of their licentious extravagances notwith- 
standing their having repeated those outrages."*^ The Assem- 
bly charged the Governor with preferring rioters to the magis- 
tracy and militia over just and honorable men "whereby magis- 
tracy has fallen into disgrace, courts have lost their influence, 
and government its dignity, and life, liberty, and property is 
rendered precarious."^^ This reign of lawlessness was never 
sternly repressed. Conditions remained more or less unsettled 
until the Revolution. A few years later the conditions in the 
province were characterized in this way : 

"For some years past this province has been running into great 
disorder and confusion. There is nothing like the administra- 
tion of justice among us. (On account of ) a silly fellow, that 
headed a mob against the Earl of Granville, his land office is 
put into the commission of the peace."*^ The famous Regula- 
tor troubles were the outgrowth and culmination of the Enfield 
riots and Granville Country disturbances. "Halifax and Gran- 
ville,^' said Herman Husband, the leader of the Regulators, 
"were deeply engaged in the same quarrel years before Or- 
ange.''** 

IMMIGRATION INTO DISTRICT 

As has been mentioned before. Earl Granville showed some 
real interest in his Carolina estate for the first decade of its 
existence. He attempted to develop it and make not only a 
fortune from it, but also to create a thriving class of tenants. 
He induced the best immigrants to settle in his district. Large 

«C. R. Vol. VI— 292. 
«C. R. Vol. VI— 292. 
«C. R. Vol. VI— 234. 
«*Swaln*s War of the Regulation. 



48 James Spbunt Histokicax Publications 

numbers of immigrants from Pennsylvania, Maryland, and Vir- 
ginia settled the northern and western portions of his territory. 
The land was cheap and also easy to obtain at this time. In 
Pennsylvania land was so dear that very few immigrants could 
settle there ; and in Virginia laws against religious liberty were 
very unattractive and objectionable. Many people from 
these colonies and also many from Ireland, coming by way of 
these colonies, finally settled in Granville's District.*^ Another 
very substantial and law-abiding people that came to Granville's 
District were the Moravians. Earl Granville, through his in- 
fluence as Secretary of State of Great Britain, induced them to 
settle in his estate. Bishop Spangenberg bought for the Mo- 
ravians in 1753 approximately 100,000 acres o:£ land lying 
between the Dan and Yadkin Kivers,^^ now included in Forsyth 
'County. The Moravians were to pay an annual rent to Earl 
Granville or his heirs.*^ 

ENCROACHMENTS AND CONFLICTING CLAIMS 

Later grants were very much harder to obtain and in fact 
impossible after 1766, when the land office was closed through 
neglect. The people who came in, consequently, settled down 
wherever they pleased and paid quit rents and allegiance to 
no one.^^ It was just such conditions that led Richard Hender- 
son to attempt to set up the colony of Trannsylvania. This 
large tract of land consisted of more than 35,000,000 acres, 
lying beyond the Blue Ridge mountains, in what is now Ten- 
nessee and Kentucky. A large part of it was included in the 
Granville District. Henderson, however, asked Granville noth- 
ing; but leased the land from the Indians for 999 years. Large 
numbers of tenants from Granville's District east of the Blue 
Ridge, also many tenants of the Crown, were induced to settle 
there. The project threatened to seriously interfere with the 
prosperity of Granville's estate and with the whole colony. The 
settlers acknowledged no authority of Earl Granville or of the 
governor of North Carolina, and, of course, refused to enter 

^Williamson's History of North Carolina. 
*^artin's History of North Carolina, 57. 
«C. R. Vol. V— 1146. 
«C. B. Vol. VIII— 195. 



The Granville District 49 

their lands and pay quit rents.*® Governor Martin in February, 
1775, issued a proclamation against Henderson, forewarning 
the people to obstruct him in his attempts to form a colony. 
"This daring, unjust and unwarrantable proceeding," said 
Governor Martin, "is of most alarming and dangerous tendency 
to the people and welfare of this and the neighboring colony."^^ 
"Such a colony of freebooters," he believed, "cannot but be a 
most dangerous tendency to the public interest."^^ 

Earl Granville was troubled not only by the encroachments 
of Richard Henderson but he came in conflict also with Henry 
McCuUoh. In 1737 the King of England had granted to Mc- 
CuUoh 1,200,000 acres of land in the province of North Caro- 
lina with the proviso that he should settle one person to every 
200 acres within the following ten years.^^ As this grant was 
made prior to the laying off of Granville's share, much land 
comprehended in it was afterwards included in Granville's 
grant At least 475,000 acres fell within Granville's share. 
These overlapping boundaries caused endless trouble. McCulloh 
was continually complaining that Granville's land agents in- 
timidated his tenants and collected rents from them.^^ He also 
charged the agents with granting his lands to tenants and keep- 
ing the fees. These distur'bances, retarding the development of 
the district, continued until 1755, when Granville and McCul- 
loh came to an agreement. Granville promised to surrender all 
rights and privileges he held from the King respecting the terri- 
tory in question ; and he authorized his agents to abide by the a- 
greement. ^* In return McCulloh was to pay annually to Gran- 
ville, from 1757 to 1760, the sum of 400 pounds in lieu of quit 
rents. McCulloh agreed to pay after 1760 the regular rate of 
quit rents : namely, four shillings proclamation money or three 
shillings sterling, for every 100 acres. He was also required to 
register in Earl Granville's land office, within twelve months, 
all grants of land made in this territory. The foregoing agree- 
ment was to hold provided he should give up to Granville all 

^»C. R. Vol. X— 246. 

•K:. R. Vol. IX— 1123-1124. 

«C. R. Vol. X— 273. 

«C. R. Vol. IX— 104, Vol. V— 669-573. 

»C. R. Vol. IX— 104. 

■«C. R. Vol. V— 78-79. 



50 James Speunt Histobical Publications 

lands after a fixed time, which had not an. average of one settler 
to the 200 acres.^^ This agreement did not end the troubles, 
for some years later McCuUoh brought suit against Francis Cor- 
bin, Granville's land agent, for 8,000 pounds which amount he 
claimed equalled the rents illegally collected by Corbin. He 
claimed Corbin had "with wicked and avaricious intentions" 
intimidated persons settled on the McCuUoh tract and had also 
admitted entries and passed grants of this territory.^® 

Earl Granville also came in contact with the remnants of the 
Tuscarora and Meherrin Indians occupying 10,000 acres ^"^ of 
his district, on the east bank of the Koanoke River. No quit 
rents, of course, could be collected from them. But, in 1767, 
one hundred and fifty of them were removed "to the Six Na- 
tions on the Susquehanna Kiver, leaving a remnant of 104 men, 
women, and children occupying about one-half the tract allotted 
to them in 1748 by the Assembly."^® The land left vacant by 
them was now open to settlement; and quit rents might now 
be collected from the tenants who moved in. 

DISADVANTAGES OF GRANVILLe's DISTRICT TO THE COLONY 

As stated before, the Granville District proved to be a great 
burden to the people of North Carolina. This came about in 
many ways. The granting of this district set up within the 
province an outside authority which, in most things, could not 
be controlled by the Assembly of the colony. On account of 
defective surveys, and many times because of no surveys at all, 
boundary disputes were constantly arising between Granville's 
agents and the governor and his agents. In 1760 Francis 
Cor'bin wrote Granville charging Governor Dobbs with granting 
lands belonging to Earl Granville. The Earl immediately de- 
manded of Dobbs that he cancel the grants. The governor 
claimed he had granted no lands belonging to Granville and at 
once dismissed Corbin from the Assistant Judgeship and from 
his position as Colonel of the Chowan Regiment, Upon investi- 
gation it was found that both were guilty of making grants of 

«C. R. Vol. V— 624-626. 
«»C. R. Vol. V— 780. 
"C. R. Vol. VI— 616. 
■a B. Vol. VH^-481. 



The Granville Disteiot 61 

land belonging to the other. '^^ A few years later Governor 
Dobbs claimed that Earl Granville had encroached upon the 
King's land at least nine miles by running the boundary line in 
Latitude 35^ 26' instead of 35 "^ 34'.^^ Just such disputes and 
disturbances had of necessity to arise, because of the mere 
existence of the separate tract of land. Such uncertainties of 
boundary lines led naturally to unsettled conditions. Many 
people came in and settled down without taking out grants, as 
they did not know in whose part they might fall. Others who 
took out grants refused to pay rents either to the Corwn or to the 
Earl, as both claimed the territory. Such conditions made im- 
possible the development of a law-abiding population. 

Certain boundary troubles also existed with Virginia along 
the western borders of the district. The settlement of the land 
near the boundary was greatly retarded, as the people did not 
know whether they would fall within North Carolina or Vir- 
ginia.®^ But in 174:9, the boundary was surveyed to the moun- 
tains, "where they (surveyors) crossed a large branch of the 
Mississippi which runs between the edges of the mountains and 
of which nobody ever dreamed."®^ All these boundary disputes, 
troubles, and disturbances, incident to Granville's retention of 
an eighth of the old proprietary grant were evils from which the 
other colonies were largely free. 

The presence of this district had a serious effect on the 
financial conditions of the provincial government. A large 
part of the colonial revenues came from quit rents. At least 
two-thirds of the quit-rents of this province went direct to Earl 
Granville, who spent nothing toward governing the colony. One 
paltry third of the quit rents thus went to the government of 
North Carolina. Hence one4hird of the people, those living 
within the lower and poorer half, paid the greater part of the 
costs of maintaining the provincial government. It is no 
wonder that we find the governor complaining that the colony 
has no money, that he is 12,000 pounds behind on his salary and 
that the quit rents due the crown cannot be collected.®^ It was, 

"•C. R. Vol. VI— 298-300. 
••C. R. Vol. IX— 1243-1244. 
«C. R. Vol. IV— 1047. 
"C. R. Vol. IV— 1047. 
"C. R. Vol. IV— 1088. 



52 James Spbunt HiSTOBiCAii Publications 

no doubt, discouraging to the people living on the crown lands, 
to pay their rents to the provincial government, and see the fees 
and rents from the fertile northern section go into the coffers 
of Earl Granville or be absorbed by his dishonest agents. This 
dual system divided the interests of the colony. The province 
did not exist as a unit. The northern inhabitants did not have 
the same attitude toward the governors that the southern inhabi- 
tants had. They paid their rents direct to Granville's agents, 
and were thereby removed from the most frequent causes of 
disputes with the governors and their agents. The governor 
could require of them nothing in which they would have the 
least interest or motive in opposing him. Consequently we 
never find the northern inhabitants, until the Regulator troubles, 
arrayed against the governor. Their great troubles lay with 
Granville's agents. If we are to believe the charges made by 
the Assembly directly after the Enfield riots, the governor was 
especially friendly to the northern inhabitants and preferred 
them in office. The inhabitants of the Granville District occu- 
pied a rather anomalous position. In writing to the home gov- 
ernment in 1773 Governor Martin complains of the Granville 
District, that it creates and widens a division in the state and 
that it had a disastrous effect on politics.^^ 

John Lord Carteret died in 1763 and was succeeded in 
his title of Earl of Granville by his eldest son, who showed no 
interest whatever in the district he inherited in North Carolina. 
His utter neglect added to the disastrous effects his district 
was already producing. He allowed his land office to remain 
closed for many years. It was extremely difficult to get a hear- 
ing from him on the most important matters.®^ Large numbers 
of people desired to settle in his district, but they were unable 
to get grants of land. The best and most substantial of them 
"turned away for other colonies ; while the shiftless and vicious, 
who had no permanent interests anywhere, came in and took up 
lands wherever they desired. When there was any possibility 
of trouble or distur'bance of any kind, they were generally found 
in the forefront, as they had nothing to lose and perhaps some- 

•*C. R. Vol. VII— 642-644. 
«C. B. Vol. IX— 990. 



The Geanvillb District 58 

thing to gain. The spirit of the Kegulators found its beginning 
in those people who came in and settled down without receiving 
grants or paying rents, and who, when rents were demanded, 
resisted. Governor Martin wrote Lord Dartmouth in 1772 
that in Granville's District "there was not wanting evidence of 
most extravagant licentiousness and criminal violence on the 
part of the wretched people."®^ Such wickedness, he said, 
would naturally terminate in bloodshed, and that this disorderly 
spirit could never be extinguished as long as Earl Granville 
held the land. "It is profitless to the proprietor," he continues, 
"and a nuisance to the colony, by affording an asylum to outcasts 
and fugitives of other provinces who set down on the land any- 
where, communicating their vices and corruptions to the other 
inhabitants, whose barbarous ignorance makes them but too ob- 
noxious to the baneful contagion." He believed the district was 
an evil growing daily more alarming. According to his opinion 
the only remedy lay in the 'better care of the proprietary, or its 
sale to the King. 

Earl Granville was finally prevailed upon to show enough 
interest to appoint an agent. So, in 1773, he chose Governor 
Martin to act as his agent.®'' By this time the inhabitants of the 
district had become so restive that it appeared impossible to 
quiet them as long as the land remained in Earl Granville's 
hands. Under Granville's rule the inhabitants often resorted to 
force when they thought it necessary, but they were methodical 
in its use. They believed that "the doctrine of non-resistance 
against arbitrary power and oppression was absurd, slavish, and 
destructive of the good and happiness of mankind."®® 

PUBCHASB BY GROWN ADVOCATED 

Shortly before the Revolution the provincial Assembly ap- 
pointed a committee of five to inquire into the settlement of 
Granville's land, and to propose plans for quieting the inhabi- 
tants in possession of it.^® But nothing came of this action. The 
assembly soon came to believe that the only way to put an end 

«•€. R. Vol. IX— 357-359. 
«C. R. Vol. IX— 683. 
«C. R. Vol. IX p. XI. 
"Ibid 530. 



54 James Spbunt Historical Publications 

to the troubles of the Granville District lay in its purchase by 
the Crown. In pursuance of this idea the Assembly petitioned 
the Orown, in 1773, to buy Granville's part of the province, "as 
Earl Granville's oflSce has been closed for several years past to 
the great inconvenience and grievance of the inhabitants of his 
territory in this province,"'^^ As early, however, as 1767, Gov- 
ernor Tryon in writing to the Earl of Shelbourne, strongly ad- 
vocated the purchase of the district by the Crown. In this course 
he saw a cure for most of the evils besetting the colony at that 
time. It would treble the value of quit rents coming to the Crown 
and would facilitate the passage of better laws for the collection 
of rents, he thought. In his opinion the inhabitants of the dis- 
trict, although they wanted the land very bad, dreaded the open- 
ing of a land office, "because of the many impositions and abuses 
they have suffered by former agents, and from the many disturb- 
ances and law suits that have arose from the irregularities in 
the office when it has been open." He believed that 60,000 
pounds sterling, the amount asked for the district by Granville, 
would be a cheap price to pay for it. He characterized it as 
"certainly the most rising interest on the Continent of Amer- 
ica." He said it contained a vast majority of the white inhabi- 
tants of the colony and embraced thirteen entire counties," the 
two western-most of which contain a tract of land more than 
ten times the contents of Khode Island Colony, Orange County 
being nearly sixty miles square, and Rowan County a!bout sixty 
miles wide and 150 miles from east to west, running to the 
Blue Eidge of Mountains.""^^ 

When Martin became governor, he believed, like Tryon, that 
the King should purchase the district, which was the cause of 
so much trouble. The rents are inadequate, he writes to the Earl 
of Hillsborough, to support the "provincial civil list with which 
it is chargeable." He thinks the district would soon grow, for 
the climate is healthful, the land is fertile, and the people will 
flock there when they know they can get good titles.*^^ The 
Earl of Hillsborough in replying, said: "The little attention 
shown by Earl GranviUe to his proprietary rights in North 

WC. R. Vol. XX— 589" 
»*C. R. Vol. VII— 513. 
»«C. B. Vol. IX— 357-86©. 



The Granville Disteict 55 

Carolina is certainly botli a prejudice to himself and to tlie 
public, and your suggestion of the expediency and advantage 
that would arise to the Crown from a purchase of those rights 
entirely correspond with my own sentiments.""^^ When the in- 
habitants learned that the district was likely to be sold, they 
knew the day of reckoning would come, when the arrears of quit 
rents would be insisted upon. They were very clamorous that 
it pass not into private hands. "^^ But they were willing to come 
under the Crown, since they knew, in that event, the arrears 
would not be insisted upon. In writing to the home government 
again, Governor Martin says, "The Proprietary right of Earl 
Granville in the heart of this province, I learn from all hands, 
My Lord, to be a very principal cause of the discontents that 
have so long prevailed in this country * * * It seems here 
a universally acknowledged principal that this country will 
never enjoy perfect peace, until that proprietary, which erects a 
kind of interest in its bowels, is vested in the Crown."'^^ 

DISTEICT CONFISCATED BY STATE. ^ATTEMPTS AT EEGAINING IT 

Earl Granville was undoubtedly on the verge of selling out 
his district to the King when the Revolution came and swept 
away all his claims to his broad Carolina estates. The people 
now set up a different system of land tenure in which none of 
the troublesome quit rents existed. By an act of the General 
Assembly in 1782 Granville's immense estates were confiscated. 
His old papers and books were collected and preserved as valu- 
able to the northern settlers.*^® But the Granville heirs did not 
propose to lose their broad lands in North Carolina without at 
least a struggle. In 1784, they presented their claims to the 
United States Minister at Paris and demanded a restitution of 
their lands. They denied the titles to the land of many of the 
inhabitants of the northern part of the state and, some years 
later, brought suit in the United States Circuit Court at Ealeigh 
to regain the district. On losing here, they appealed to the 
United States Supreme Court, where they engaged Francis 

"C. R. Vol. IX— 276. 

"Ibid 261-262. 

"Ibid 49. 

"State Beportg Vol. XIX—- £M. 



56 



James Sprunt Historical Publications 



S. Key as their counsel. But Key died soon afterwards (in 
1809) and the case was dropped for want of an appeal bond« 
Had the case ever come to a final decision it would likely have 
been decided against North Carolina, as Chief Justice Marshall 
had expressed the opinion that the Treaty of Paris prohibited a 
state from invalidating English titles. 

According to Article V ^"^ of the Treaty of Paris, as inter- 
preted by the Supreme Court, "^^ North Carolina was under obli- 
gation to restore the land. For a time great uneasiness was felt 
throughout the state. It is impossible to say what might hare 
happened had the Courts ordered North Carolina to restore the 
land.*^® But luckily for the state, the night-mare of her colonial 
existence was not to harrass her in her statehood. The greatest 
hindrance to the colony of North Carolina was finally re- 
moved.*^* 






■1. 



*? 



PS* 






SB 



J". 



""It is agreed that the Congress shall earnestly recommend it to the legislatim 
of the respective states, to provide for the restitution of all estates, rights and 
properties which have been confiscated, belonging to real British subjects and 
also of the estates, rights, and properties of persons resident in districts in tlia 
possession of His Siajesty's armies, and who have not borne arms against tilt 
said United States " 

"Ware vs. Hylton 3 Dallas 199. 

"Moore's History of North Carolina Vol. I«-456. 






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Stanford, California 



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